Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Jeremy Gladstone
Judicial Officer and Counsel
Before: Justice L. Pringle
Heard on: October 23, 2015 and February 23, 2016
Reasons for Judgment released on: April 21, 2016
Counsel:
- Mr. I. Shaikh, for the Crown
- Mr. J. Rosenthal, for the defendant Jeremy Gladstone
Judgment
PRINGLE J.:
[1] Charge and Initial Facts
The accused is charged with driving with over 80 mg of alcohol in 100 ml of his blood on March 26, 2015. The evidence shows that in driving along St. Clair Ave, just before midnight on March 25, the accused almost hit a police car while changing lanes. When Constable Rocha and Constable Kybartas activated the lights on their scout car to stop and investigate him, they observed the accused clip two parked cars as he pulled over to the curb to stop. After brief discussion with the accused, Constable Rocha made a demand for him to provide a sample on an Approved Screening Device (ASD). After the accused registered a fail, he was arrested and taken to Traffic Services to provide further breath samples. If admissible, the certificate of analysis shows that the accused's readings were over the legal limit.
[2] Crown's Case
In support of its case, the Crown called the two investigating officers and played the in-car video of what took place at the road side and on the way to the station. The parties agreed on certain evidence in relation to the Qualified Breath Technician's evidence. As was his right, the accused elected not to call any evidence in relation to either Charter or trial issues.
[3] Defence Issues
On behalf of the accused, counsel raised the following 8 issues in relation to the Crown's case:
Did the officer have a reasonable suspicion that entitled him to make a demand for a sample of breath on the ASD, pursuant to s.254(2)?
Was the ASD demand made "forthwith" in accordance with s.254(2)?
Should the officer have provided the accused with his right to counsel before the ASD arrived in accordance with R. v. George?
Did the officer have the requisite Reasonable and Probable Grounds to make the demand pursuant to s.254(3)?
Was the demand a valid demand pursuant to s.254(3)?
Was there a breach of s.10(b) right to counsel in light of the paucity of evidence regarding how duty counsel was called, and if so, should the evidence be excluded pursuant to s.24(2) of the Charter?
Were the samples of breath at the station provided as soon as practicable?
Is there evidence that the accused received a copy of the certificate of the qualified technician as required by s.258(7)?
[4] Video Evidence Adoption
In addition, counsel submitted that since the officer didn't specifically adopt the contents of the videos played for the court, the court couldn't rely on what he said in the videos as evidence of what was said. However, I do not agree that the officer didn't adopt the videos played for the court. While he wasn't specifically asked this, there was evidence upon which it can be inferred that Constable Rocha was adopting the video: for example, he identified that it was his scout car, and the location they were in, and identified various events taking place on the video that occurred that night. In addition, Defence Counsel himself used the video as a basis for cross-examination to put the officer's own words to him on more than one occasion, and specifically put to him, "you are not quarrelling with the video are you sir?", and Constable Rocha said, "no". In the circumstances I am going to rely on both the officer's testimony in court and on the video as evidence of what was said by him in determining the issues before me.
[5] Order of Analysis
I am going to go through the issues raised by the Defence in the order they arose in the police investigation.
Issue 1: Reasonable Suspicion for ASD Demand (s.254(2))
[6] Statutory Requirement
Section 254(2) requires that an officer have "reasonable grounds to suspect that a person has alcohol in their body" before an ASD demand is made. Here, counsel pointed out that the officer testified on a number of occasions that his suspicion was that the accused "had consumed alcohol". While conceding that consumption of alcohol may lead to a reasonable suspicion of alcohol in someone's body, counsel submitted that I should infer that, in this case, Constable Rocha was misguided as to the statutory requirements.
[7] Legal Standard
I cannot agree. While it is always preferable that an officer uses the precise words of the section and avoid this type of argument, the law is clear that there is no magic incantation or formula which must be uttered precisely by the witness in court. It is sufficient, if the testimony as a whole establishes, that the witness had the requisite reasonable suspicion: see R. v. Harris, [2007] O.J. No. 675 (S.C.J.) at paras.41-49.
[8] Evidence of Suspicion
Here, Constable Rocha testified that his suspicion was based on the slight odour of alcohol from the accused's breath, the fact that he made contact with the vehicles, and the overall conversation in which the accused admitted that he had consumed alcohol and had come from a restaurant. The video in EX 2 also shows that the officer questioned the accused whether he had anything to drink, told him he could smell alcohol on him, and advised him that the reason for the stop was that he almost hit the police car and did hit 2 parked cars.
[9] Reasonableness of Suspicion
Constable Rocha admitted that he had a suspicion the accused had been drinking before he stopped him. Although the Defence submitted that this was not reasonable or possible, I see nothing unreasonable about having a suspicion that a driver has been drinking when that driver almost hits a police car and then shortly after, actually hits two parked cars.
[10] Conclusion on Issue 1
In my view, the statutory pre-requisites for the ASD demand were met on the totality of the evidence here.
Issue 2: "Forthwith" Requirement (s.254(2))
[11] Legal Standard and Defence Submission
The demand for a breath sample on the ASD must be made by the police officer as soon as he forms the reasonable suspicion that the driver has alcohol in his body: R. v. Quansah, 2012 ONCA 123. While acknowledging that this was not a big point, counsel submitted that the officer didn't make the demand immediately, but rather asked the accused for his driver's licence, ownership and insurance before eventually telling him, "just to let you know sir, I am going to read you a breath demand". Especially in the context that the officer already had his suspicions that the accused had been drinking, the Defence submitted that the demand was not made forthwith.
[12] Timing Evidence
The video shows that the accused was stopped at midnight, the officer had very brief conversation with him about alcohol and explained to him why he had been stopped and asked for his documents. The officer told the accused he was going to read him a breath demand within approximately one minute of the stop, at 12.01 a.m.
[13] Conclusion on Issue 2
In that one minute, there is a compelling inference that the officer was confirming his suspicion (based on the accused's driving), that he had been drinking. In the circumstances, I find the forthwith requirement was met.
Issue 3: Right to Counsel Before ASD Arrival (R. v. George)
[14] Legal Principle
In R. v. George, 2004 CanLII 6210 (ON CA), Justice Gillese confirmed that a demand will not comply with the "forthwith" requirement in s.254(2) if there is a realistic opportunity for the detainee to contact counsel after the demand is made and before the sample is provided. In other words, where the device is not at the scene and there is enough time for the detainee to consult with counsel before it arrives, the police must provide the detainee with their rights to counsel. If that is not done and the court finds there was a realistic opportunity to consult with counsel before the sample was taken, the sample will not be provided "forthwith".
[15] Defence Submission
The Defence submitted that, based on the officer's notes in relation to time, there was a sufficient opportunity for the officers to have provided the accused with his rights to counsel. Accordingly, if the officer's notes on times were accurate, the Defence submitted that Constable Rocha should have provided the accused with his rights to counsel.
[16] Video Evidence on Timing
However, based on the video which shows that the demand was at 12.01 and the ASD arrived at 12.06, I understood the Defence to concede that this 5 minute window of opportunity after midnight would not have provided a realistic time for the accused to have contacted counsel.
[17] Preference for Video Evidence
I will address counsel's submissions about the problems with Constable Rocha's notation of time below. However, I believe that I am entitled to watch the video for my own assessment of time in relation to the unfolding of events that night. As stated by the Supreme Court of Canada in R. v. Nikolovski, 1996 CanLII 158 (SCC):
A tape, particularly if it is not challenged as to its accuracy or continuity, can provide the most cogent evidence not only of the actual words used but in the manner in which they were spoken. A tape will very often have a better and more accurate recollection of the words used and the manner in which they were spoken than a witness who was a party to the conversation or overheard the words.
[18] Reliance on Video
In relation to the chronology of events and the timing of those events, I prefer the accuracy of the video evidence over the notes of Constable Rocha.
[19] Conclusion on Timing
Based on the timing disclosed by the video, it is clear to me that there was no realistic opportunity for the accused to have contacted and consulted with counsel between 12.01 a.m. and 12.06 a.m.
[20] Conclusion on Issue 3
I find no Charter violation in the circumstances.
Issue 4: Reasonable and Probable Grounds (s.254(3))
[21] Understanding of "Fail"
Counsel's primary submission on this point was that the officer never demonstrated that he understood what a "fail" on the ASD meant, and therefore could not have had subjective reasonable grounds for arrest. I disagree. The officer testified that he told the accused what a fail meant and it is clear on the video that after administering the test, Constable Rocha said to the accused, "ok, the reading you have is a fail. You are over the legal limit".
[22] Device Nomenclature
The Defence also noted that Constable Rocha incorrectly referred to the ASD as the Alcotester Drager 8610, instead of the Drager Alcotest 6810. However, I was not concerned by this small error of transposing two of the numbers in the device, since the officer correctly referred to the device he was using on more than one occasion as the "approved screening device".
[23] Conclusion on Issue 4
I am satisfied that there were both subjective and objective reasonable grounds for arrest here.
Issue 5: Validity of the Demand (s.254(3))
5.1 Factual Foundation
[24] ASD Demand
Constable Rocha testified that he had a reasonable suspicion that the accused had consumed alcohol and made a demand in relation to the Approved Screening Device (ASD) from the back of his memo book at 12.01 a.m. The video confirms that Constable Rocha made a demand for a sample on an approved screening device and said to the accused: "I demand that you provide me a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for the purpose of taking that sample. Do you understand?" The accused said "yes".
[25] Approved Instrument Demand - Initial
After the arrest, Constable Rocha testified that he read the Approved Instrument Demand to the accused from the back of his memo book and explained to him that he would be providing two suitable samples at the nearest station. The accused said he understood. The video confirms that after the accused failed at 12.12 a.m., Constable Rocha explained to him, "ok, you are going to be arrested for over 80. You are going to be taken to TSV to provide 2 suitable samples into an approved instrument. Once that is completed… I'll have your family pick you up. Understood?". The accused replied, "yeah".
[26] Approved Instrument Demand - Formal
The video also reveals that at 12.24.40, Constable Rocha formally read the demand to the accused in the back of the police car. At this time, Constable Rocha told the accused, "Like I told you, you are going to be going back to TSV to provide 2 suitable samples", and then went on to say, "I demand that you provide two samples of your breath into an approved screening instrument to enable an analysis to be made to determine the concentration if any of alcohol in your blood and that you accompany me now for this purpose, do you understand?". The video indicates that the accused responded, "of course I do."
[27] Breath Technician Confirmation
By way of further context in relation to the demand, the lawyers agreed that later, at 1.29 a.m. the Qualified Breath Technician, Constable Fogg, also said to Constable Rocha in the presence of the accused, "he has been arrested for over 80 and brought here to provide 2 samples into an approved instrument". Seconds later Constable Fogg says to the accused, "you are here to provide further samples of breath into an approved instrument. You understand the demand the officer said to you earlier, that you are now required to provide suitable samples of your breath, and it is in my opinion if they are suitable, into this instrument. He read that demand to you, do you understand it?", and the accused said "yes sir".
5.2 Analysis of the Issue
[28] The Problem: Incorrect Device Description
The crux of the problem here is that in making the formal demand for breath samples after the accused's arrest, the officer mis-described the device to be used to take the samples. Instead of referring to an "approved instrument", in the formal demand, the officer incorrectly referred to an "approved screening instrument".
[29] Legal Question
Was there a valid demand for the purposes of s. 254(3)?
[30] Relevant Case Law
In several cases where the officer has read the ASD demand as opposed to the approved instrument demand to the accused, judges of this court have held the demand was not valid: see, for example, R. v. Kagayalingam, 2006 ONCJ 196, R. v. Cheng, 2008 ONCJ 368, R. v. Ovchinikov, [2008] O.J. No. 5959 (C.J.), and R. v. Williams, 2014 ONCJ 582.
[31] Waisanen Approach
Similarly, in R. v. Waisanen, 2015 ONSC 5823, the evidence clearly established that the only demand that was ever made to the respondent was the "approved screening device" demand, and no officer ever made the "approved instrument" demand. On appeal, Justice Campbell upheld the trial judge's finding that this was not a valid demand. Justice Campbell reviewed the law and stated:
In determining whether or a not a police officer has made a lawful demand to require an individual to provide a sample of his or her breath, courts should adopt a flexible and functional approach, focusing on whether or not the individual understood that he or she was required to provide a breath sample, and considering the entirety of the surrounding circumstances. See, for example, R. v. Ghebretatiyos, [2000] O.J. No. 4982; R. v. Tash, 2008 CanLII 1541 (ON SC); R. v. Benson, [2008] O.J. No. 3056 (S.C.J.).
At the same time, the courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption, created by s. 258(1)(c) of the Criminal Code, is that the "samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)" of the Criminal Code, namely by means of an "approved instrument" demand. Approved screening device demands made pursuant to s. 254(2)(b) of the Criminal Code have been consistently held to be legally inadequate for this purpose. See R. v. Kagayalingam, 2006 ONCJ 196; R. v. Cheng, 2008 ONCJ 368; R. v. Ovchinikov, [2008] O.J. No. 5959 (C.J.); R. v. Monsivais, 2012 ONCJ 106; R. v. Williams, 2014 ONCJ 582; R. v. Nasseir, [1998] O.J. No. 2166; R. v. Palanacki, [2001] O.J. No. 6254 (C.J.). The decisions in this line of authority persuasively explain that these two demands are significantly different in their content and in their practical consequences for the accused, and that strict technical compliance with s. 258(1)(c) of the Criminal Code is required, given the considerable evidentiary assistance provided to the Crown, by the provision.
[32] Distinguishing This Case
This case is different than Waisanen and the cases referred to in it:
This was not a case where the ASD demand was made instead of the approved instrument demand;
Here, the ASD demand was properly made, and the approved instrument demand was properly made but for the insertion of an incorrect word;
Although in some cases such a mistake might mean the accused did not understand what was required, here the accused was informally advised in the police car that he would next have to provide suitable samples into an approved instrument at the station, and he was again informally advised by the breath technician at the station that he would be providing further samples into an approved instrument, and he was shown the approved instrument;
It appears to me that Constable Rocha understood his duties and the different devices, but misspoke by inserting the incorrect word in the formal demand; and
Perhaps most importantly, the totality of the circumstances demonstrate that the accused would have understood that he was required to provide further samples of his breath at the station to determine the concentration of alcohol if any in his blood, and that this was a different process than the one that he had just completed on the ASD.
[33] Conclusion on Issue 5
Applying the flexible and functional approach in this case, I find that the totality of the circumstances demonstrate that there was a valid demand.
Issue 6: Breach of Right to Counsel (s.10(b))
[34] Rights to Counsel at Roadside
Constable Rocha testified and the video demonstrates that after arrest, he read the accused his rights to counsel from the back of his memo book. The video reveals that at the time, the accused was anxious and upset, and Constable Rocha explained to him what was happening and reassured him that he would explain everything as they went along. In the process, Constable Rocha acknowledged that he forgot to ask the accused, "Do you want to call a lawyer now?" Nonetheless, the video shows that the accused said he understood his rights to counsel at the roadside.
[35] At the Station - Initial Interaction
The accused was paraded before the sergeant in charge of the station at 12.49 a.m. While at the station, Constable Rocha testified that the accused initially refused duty counsel and indicated that he did have a lawyer, but couldn't provide the police with any details of the name or phone number of that person. The officer did not have any notes of this conversation, nor did he recall exactly what was said.
[36] Duty Counsel Called
Constable Kybartas testified that he called duty counsel for the accused at 1.08 a.m., and duty counsel returned the call at 1.25 a.m. He did not recall any complaints made by the accused in this regard, but he didn't specifically ask him if he was satisfied with duty counsel. The accused was taken into the breath room at 1.30 a.m. Like Constable Rocha, Constable Kybartas had no notes about any conversations with the accused regarding his rights to counsel. When asked how he knew that he had to call duty counsel for him, Constable Kybartas said, "he has the right to free legal aid advice".
[37] Accused Did Not Testify
The accused did not testify on the Charter application.
[38] Hegedus Principles
The Defence submitted that the accused's right to counsel was violated, relying on R. v. Hegedus, 2015 ONCJ 34. In that case Justice Baldwin made the following comments at paras. 34-40:
The Applicant bears the onus of proof on a balance of probabilities.
This is yet another judgment where this Court is being asked to make inferences and come to conclusions based on poor police note-taking on the critical issue as to whether or not an accused requested or declined to speak to a counsel of choice.
Police officers, like in this case, are making notes of details like when the accused asked for a drink of water, but they have no notes on whether the accused was asked about speaking to counsel of choice and then declined it. They have no notes on what exact words were used to trigger the call to duty counsel.
The accused's words at the scene "maybe duty counsel later" are ambiguous. Mr. Hegedus said maybe. How did the police go from maybe to making a call to duty counsel at 11 Division? I do not know because there were no notes made of this crucial conversation.
Judges have been writing about this very issue for years now and experienced officers are still making the same mistakes.
Reference R. v. Cody Smith, 2014 ONCJ 595; R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.) and R. v. McCallen, 1999 CanLII 3685 (ON CA) as just 3 examples.
The Applicant has met his onus of proof.
[39] Ellies Approval
Hegedus was referenced with approval in R. v. Ellies, [2015] O.J. No. 4231, although the facts involved further breaches of the right to counsel by the police in that case.
[40] Analysis - Paucity of Evidence
Each case has to be determined on its own facts. Here, I agree that there was a paucity of Crown evidence about implementing the accused's wish to speak to a lawyer. In particular, I do not know how the officers moved from understanding that the accused initially refused duty counsel and wanted to speak to a particular lawyer, to calling duty counsel for him. Indeed, I do not even know if the accused wanted to speak to duty counsel, since Constable Kybartas had no note or any recollection of why he called duty counsel.
[41] Kumarasamy Comparison
This case bears some similarity to R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.) where the appellant had wanted to speak to a specific lawyer but did not have the number readily available. There was no evidence that the appellant had asked to speak to duty counsel, or had agreed to speak to them, but the police did put him in touch with duty counsel. The officers there felt that as long as the appellant had spoken to any lawyer, they had complied with s.10(b). Justice Durno disagreed and found a breach.
[42] Finding of Breach
Once a detainee indicates that he wishes to contact counsel, the police duty to facilitate a reasonable opportunity for him to do so is triggered. That duty was triggered here: Constable Rocha knew that the accused wanted to speak to his own lawyer. In the absence of any meaningful evidence about that implementation of that right from the Crown, I agree with Justice Baldwin that the Defence has met its onus.
[43] Conclusion on Breach
I therefore find that the accused's right to counsel was violated.
[44] Section 24(2) Analysis - Grant Factors
In considering whether the admission of the evidence of the breath tests would bring the administration of justice into disrepute pursuant to s.24(2) of the Charter, I must assess and balance the effect of admitting the evidence on society's confidence in the justice system by considering the following factors set out in R. v. Grant, 2009 SCC 32:
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interests of the accused; and
Society's interest in the adjudication of the case on its merits.
[45] Factor 1: Seriousness of State Conduct
Here, Constable Rocha testified that he understood that rights to counsel were very important, and I accept that in the normal course, he would have attempted to contact a lawyer for a detainee if he were given a name or a phone number. However, when he and Constable Kybartas were unable to explain how they attempted to implement the accused's right to counsel of choice in this case, or how they came to call duty counsel for a man who wanted to call his own lawyer, I agree with Justice Baldwin in Hegedus and Justice Selkirk in Ellies that their failure to take notes or to recall anything about this critical issue was unacceptable. The inability of police to be able to explain implementation of the requested right to counsel was serious; this factor favours exclusion of the evidence.
[46] Factor 2: Impact on Accused
At the same time, the impact upon the accused cannot be said to have been great. He spoke to duty counsel before providing his breath samples, and apparently made no complaint about this process. He chose to call no evidence on the Charter hearing. In R. v. Wilding, 2007 ONCA 853, the Court of Appeal stated:
…in assessing the seriousness of the breach, the summary conviction appeal judge failed to take into account that the breach did not prejudice the respondent.
The record shows either, that the respondent accepted the officer's invitation to speak to duty counsel or that he initiated his own request to do so after the officer informed him he could not locate his counsel of choice. Regardless of the precise manner in which he came to speak to duty counsel, the respondent did speak to duty counsel for a period of twelve minutes. At no time, during or after the call, did he complain about having to speak to duty counsel; nor did he complain about the adequacy of the advice he received. Indeed, in his testimony on the voir dire, the respondent acknowledged that he "did not have any problem with what he had been told" by duty counsel.
That the respondent spoke to duty counsel and was content with the advice he received is especially significant in this case. It attenuates to a large extent the seriousness of the breach for two reasons. First, the record is silent on whether there was any reasonable likelihood of contacting respondent's counsel of choice at 3:00 a.m., even if the arresting officer had been able to locate his phone number. Second, the inability to retain counsel of choice in these circumstances, while not insignificant, is far less significant than the inability to retain counsel of choice for trial, as was the situation in R. v. McCallen, 1999 CanLII 3685 (ON CA).
In sum, if there was a s. 10(b) breach here, it was minor and inconsequential. The summary conviction appeal judge erred in concluding otherwise.
[47] Factor 2 Continued
Together with the fact that the gathering of breath samples involves a relatively non-intrusive procedure, this factor favours admission of the evidence.
[48] Factor 3: Society's Interest in Adjudication on Merits
The breath samples were reliable evidence in a drinking and driving case that is vital to an adjudication of the trial on its merits. The truth seeking function would obviously be better served by admission of the evidence.
[49] Balancing Factors - Admission of Evidence
Balancing all these factors, I find that the evidence should be admitted.
Issue 7: Samples Provided "As Soon as Practicable"
[50] Defence Submission on Timing
The Defence submitted that the officer's timekeeping was a mess, and submitted that, based on the officer's chronology of events as set out in his notes the requirements that the tests be taken "as soon as practicable" were not met, particularly in relation to the roadside events.
[51] Discrepancies in Time Recording
There were a number of differences between the times set out in the officer's notes and the video. Constable Rocha couldn't explain the discrepancies, except to say that he used his watch for some of the times he noted, conferred with his partner for some of the times, and also used the ICAD system. As I have said in R. v. Sanmugarajah, [2015] O.J. No.5928, discrepancies in time recording devices are not unexpected, but they are unfortunate in the context of time sensitive obligations required for the police to be in compliance with the Criminal Code. It would have been better if the officer had been more precise and ensured that there were no material differences in the time recording devices that night.
[52] Reliance on Video for Timing
However, for the reasons I explained earlier, I am prepared to rely on the video as the more accurate witness with respect to timing and chronology of events. Relying on the video, I find there were no unexplained gaps in the progress of the investigation and I can see that the police acted reasonably up until the time that the video ended and they arrived at the police station. I also found that in his testimony, Constable Rocha was able to describe what was happening and the steps that he was taking in the course of the investigation.
[53] Conclusion on Issue 7
Bearing in mind that Constable Rocha testified that he understood his obligations to ensure the breath tests were taken as soon as practicable, and looking at the totality of the evidence; I am satisfied that the tests were taken in accordance with s.258(1)(c)(ii) and the principles set out in R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA).
Issue 8: Certificate of Qualified Technician (s.258(7))
[54] Statutory Requirement
Sub-section 258(7) states that no certificate of qualified technician shall be received into evidence unless the accused has been provided with a copy of the certificate before the trial.
[55] Crown Evidence
In this case, the evidence of Constable Rocha was as follows:
Q: Did you ever receive information as to what the readings were?
A: I was advised that the second reading was 143 mg of alcohol.
Q: Did you receive information as to what the first one was?
A: 151 mg in 100 ml of blood.
Q: Did you receive any paperwork to that effect?
A: Yes I did.
Q: Did you serve that paperwork onto the accused?
A: I did. I did serve the following documents, certificate of qualified technician …
Q: I'm just handing you an 8 ½ by 11 document sir. Can you tell me what that document is?
A: It's a certificate of qualified technician breath sample, s.258.
Q: At the bottom there, there seems to be a signature?
A: It's my name, Badge Number 10695, the date which is 26th of March, and the accused's signature.
[56] Nature of Document
The document, identified by the officer, then became EX 3. EX 3 appears to be a photocopy. There was no direct evidence regarding where Constable Rocha obtained the document that he served on the accused, or whether it was an original or a copy.
[57] Defence Submissions
Counsel submitted:
There was none of the "usual evidence" that what was served upon the accused was the same as what was produced in court, and accordingly I should not find that his client received a copy of the certificate; and
The photocopy of the certificate was not sufficient to enter as evidence in court.
[58] Crown's Approach
I agree that the Crown's evidence about the certificate from Constable Rocha was somewhat sparse. However, I have little doubt that the reason for the lack of "usual evidence" on this topic was because at the time of Constable Rocha's evidence, the Crown did not intend to rely on the certificate. Instead, counsel had already advised the court that he intended to call the Qualified Breath Technician, Constable Fogg, as a witness. Indeed, Constable Fogg was available and actually on his way to court when the parties agreed it would not be necessary to call him, since they had decided to put forward his evidence on a different discrete point as an agreed statement of fact.
[59] Distinguishing Prior Cases
In this regard, I think that the cases provided by the Defence about the unreliability of a photocopy and the lack of strict proof of notice are distinguishable.
[60] Deschamps
In R. v. Deschamps, [1999] O.J. No. 4427 (C.J.), Justice Douglas found that where there was no original produced, and no evidence whether the accused was served with a true copy of the original, the original, or another document altogether, he could not find that the document tendered by the officer was a reliable copy of the certificate. Throughout the judgement, His Honour noted that the Crown chose not to call the breath technician who could have compared the documents and/or allowed the Crown to rely on his viva voce evidence without resort to the certificate.
[61] McLeod
Similarly, in R. v. McLeod, 2007 ONCJ 248, Justice Wolder held that a photocopy, of a photocopy of the original, which had been lost was not sufficient. He noted that while it remained open to the Crown to call the breath technician and avoid the need to rely on the certificate in that case, the Crown chose not to put the best evidence before the court.
[62] Distinguishing This Case
In this case, unlike in Deschamps and McLeod, I understand why the Crown did not call the "best evidence" of the breath technician, since the Defence agreed that it was not necessary to call him. In these circumstances, I simply do not have the same concerns that apparently animated the courts in Deschamps and McLeod with respect to the Crown's failure to call the best evidence about the certificate; the reliability of the copy of the certificate, or the lack of "the usual evidence" about what was served.
[63] Findings on Certificate
Considering that context, and looking at the photocopy in EX 3 in conjunction with Constable Rocha's testimony, I believe I can safely find:
EX 3 appears to be a copy of a document entitled "certificate of a qualified breath technician", identified as Brett Fogg;
According to Constable Rocha, the certificate related to the breath readings provided by the accused to Constable Fogg in this investigation at 1.37 a.m. and 2.04 a.m.;
The officer served the certificate of qualified technician relating to the readings on the accused;
The accused signed the certificate presented to him below the words, "You are hereby notified that it is intended to produce this certificate at your trial", and beside the words, "I acknowledge receipt of a true copy of this certificate".
[64] Conclusion on Issue 8
In my view, this evidence is sufficient to show that that the requirements of s.258(7) were met on the balance of probabilities. Based on the way EX 3 came before the court, I don't have reliability concerns arising out of the fact that it was a photocopy, and I find it admissible.
Summary and Conclusion
[65] Final Verdict
Notwithstanding counsel's very thorough efforts, it is my view that the Crown has proven the case beyond a reasonable doubt. Having reviewed the video, the transcript and heard the evidence, I can say that the police treated the accused politely and professionally. Despite the problems identified by the Defence and analysed above, I find the evidence is admissible. Accordingly, there must be a finding of guilt.
Released: to the parties on March 14, 2016; in court on April 21, 2016
Signed: Justice Leslie Pringle